NTTA spent $137,000 to keep public documents a secret

Keeping secrets is expensive business for the North Texas Tollway Authority.

The agency spent more than three years working to keep the public from reading a confidential series of memos written by a former executive director just before he was ousted from his $260,000-a-year job in December 2008.

NTTA lost that case last month. Citing the possibility of additional legal costs — and yet maintaining that it had a legitimate argument to keep the records secret — NTTA decided not to appeal the ruling of a Travis County judge, spokesman Michael Rey said this week.

The records were sent to The Dallas Morning News, which had requested them, but not before the NTTA had incurred $137,000 in legal fees with its longtime outside law firm, Locke Lord Bissell & Liddell — all over a single request for records. In all, NTTA has spent nearly $319,000 since 2009 on outside attorneys hired to parse and often challenge requests for public information, the agency said.

Officials at the authority, which has been busy pursuing toll road scofflaws for about $13 million in back tolls, declined to explain why they refused to turn over the documents when requested by The Dallas Morning News under the Texas Public Information Act on Dec. 18, 2008.

Instead, spokesman Rey said the authority believed it had a strong legal basis for withholding the memos, which its lawyers maintain were not public documents.

In filings, NTTA attorneys argued that the memos were drafts and therefore exempt from public disclosure under what is known as deliberative process privilege. They also claimed that the memos, part of a self-evaluation prepared by former executive Jorge Figueredo beginning in June 2008, weren’t officially part of Figueredo’s personnel file, and therefore fell outside the scope of The News’ request.

Lawyers at the Texas attorney general’s office disputed that, writing that the memos make up “core public information” that could not be withheld without an exception written into the Texas Public Information Act.

The memos reveal that Figueredo had found the agency culture at NTTA far more problematic than he anticipated when he was hired the previous summer.

Tumultuous time

As Figueredo arrived in Plano in 2007, NTTA was emerging from a high-stakes battle with Gov. Rick Perry and state transportation officials over who would get to build State Highway 121, now known as the Sam Rayburn Tollway.

NTTA prevailed. As a result, it was taking on $5 billion in new debt and making promises to officials throughout North Texas that it would build five additional toll roads soon.

But Figueredo wrote in his memos to his bosses that he had arrived to find a workforce deeply resistant to change. He also found a nontransparent agency that was largely in the grips of a handful of long-standing consulting firms. (Former NTTA chairman Paul Wageman said in a sworn affidavit included in the court files that he had never seen the memos, and did not believe any other board member had either.)

All of those complaints — and others, including what Figueredo called a near-complete lack of internal auditing, inadequate controls, a “cold war mentality” with the press, and a well-deserved reputation for arrogance throughout the region — were put into the three memos, dated in June, October and November 2008.

Many of those issues would emerge starting late in 2009, after The News began publishing stories examining the authority’s costly reliance on firms that had provided its legal, financial and engineering expertise for generations. By 2011, NTTA found itself assailed by state lawmakers, county judges and other elected officials on the question of those consultant relationships.

But in 2008, when Figueredo wrote the memos, stamped “confidential,” none of those issues had yet spilled out into public view.

It’s not clear who authorized a challenge of the attorney general’s letter that said the memos should be released to The News. Frank Stevenson of Locke Lord was the outside general counsel for the authority. He continues in a reduced capacity as board counsel, and his law firm would be the one tasked to pursue the lawsuit.

NTTA handles a lot of open-records requests and routinely sends requests to the attorney general’s office for opinions on what it must release. Bob Schell, one of NTTA’s two in-house lawyers, said just two cases have gone to court in recent years. One was settled last fall, and the other involved the Figueredo memos.

NTTA said it had fielded between 300 and 500 open-records requests in each of the past four years, and requested between 24 and 37 opinions from the attorney general each year.

“We only withhold information that is confidential by law or to which an exemption to disclosure applies,” Rey said. “We only seek an attorney general’s ruling when there is no previous determination regarding disclosure.”

It is not easy to tell how much NTTA spends on in-house time to fielding requests. More of that work has moved in-house in the last year as Locke Lord’s role has been diminished since the hiring of general counsel Thomas Bamonte.

The public’s information

Scott Houston, general counsel for the Texas Municipal League, said some cities and governmental bodies spend a lot of public money fending off unwarranted requests for public information. However, he said, most requests are legitimate and should be seen as a normal course of doing business in a democracy.

“This is not a burden,” Houston said. “We tell our members that this is just something you are supposed to do. It’s government information.”

The problem, according to Laura Prather, a lawyer and lobbyist for the Texas Press Association, is that the number of exceptions that lawmakers write into the Texas Public Information Act grows every year — thereby giving agencies that want to keep documents under wraps more reason to believe they can.

“Every session we see further encroachments on the right of access to government information,” Prather said. “Every year there are new exceptions carved into the law, and so it is becoming a situation where you have a broad law that has so many exceptions to it, it almost looks like Swiss cheese. The interests of Texas citizens are being left by the wayside.”

Another problem: Government agencies often have more money than media companies or members of the public to spend fighting over access to public documents.

“So you end up with the government having the upper hand in maintaining secrecy,” Prather said.

As for Figueredo, he works as a toll road division executive for London-based Atkins International out of Orlando. After preparing the last of the three memos, he met with the NTTA board of directors behind closed doors on Dec. 5, 2008. During a break, he left the room and returned to announce his resignation.

He left the building and has not spoken publicly about his tenure since.

Staff writer John Jordan contributed to this report from Austin.

AT A GLANCE: Footing the bill

According to NTTA, the agency has spent nearly $319,000 since 2009 on outside lawyers who dealt with requests for public records:

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